Could Obama’s “contraception requirement” be on the way out?

The White House said Thursday it has no plans to reverse course on its decision to require that all employers cover contraception in their insurance plans, despite a wave of criticism from Republicans and Catholic leaders.

After a bruising week for health officials on the issue, the White House arranged a conference call with reporters to address what it called “confusion” over the policy. It also put up a blog post by Cecilia Munoz, director of the House Domestic Policy Council, pointing out that “no individual health care provider will be forced to prescribe contraception” and “no individual will be forced to buy or use contraception.”

And White House press secretary Jay Carney said at Thursday’s afternoon briefing that there was “not a debate” over reversing the decision. “The decision has been made, and it was made after careful consideration,” he said.

So the White House says that its decision on forcing American businesses to cover contraception is final. That’s cute and all, but it is just one more example of the foolishness of this president and the way his health care law was written. It also serves as a great illustration of why our federal government’s dependence on executive agencies as a whole is incompatible with effective government.

Despite what President Obama may like to believe, this issue is far from dead. The contraception requirement isn’t a law that was passed through Congress – it’s just a regulation that came out of the Department of Health and Human Services.

That means that when a Republican president is inaugurated in 2013, he can simply get some new people in place at HHS that will repeal it for him. Then, the next time a Democrat is elected president, he can reinstate the contraception requirement. And back and forth forever. How stable!! That will definitely help businesses plan for the future.

This instability is one of many reasons that rule-making by executive agency wasn’t provided for in the Constitution. By creating a fairly deliberate law-making process (along with electing only 1/3 of the Senate every two years), our Founders made it much less likely that one Congress would pass a law only to have the next come along and immediately repeal it. That type of stability and dependability create exactly the type of environment that is necessary for freedom and economic prosperity to thrive.

So despite the laughable insistence by the White House that this issue has been decided, the debate has only begun. That is good news for any one who believes that the President has no business dictating what Americans spend their money on. The bad news is, the threat posed to everyone’s freedom by our government’s crack-like dependence on executive agencies to make laws doesn’t seem to be going away anytime soon.